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The Church of Scientology is asking the Supreme Court to let it use clergy-penitent privilege to keep secret more than 18,000 pages of documents on former member and employee Laura DeCrescenzo. It has picked up some unusual allies—the National Council of Churches (NCC) and the Rutherford Institute, a civil liberties organization.
DeCrescenzo is suing Scientology and alleging a number of abuses, including a forced abortion when she was 17. The California courts have ordered Scientology to turn over the records. Scientology has complied, but asked the Supreme Court to overturn the order, arguing that the conversations were protected by the state's clergy-penitent privilege.
In California, clergy may invoke the privilege even if the parishioner waives it. However, the privilege only stands if the conversation took place between one clergyperson and one parishioner. The courts ruled that since 259 Scientologists reviewed DeCrescenzo's documents, they're no longer confidential. And even though Scientology leaders have argued that all of the reviewers were clergy sworn to secrecy, that's still 258 too many, according to the California courts. If the case is allowed to stand, clergy in California will not be able to rely on the privilege if they share penitent conversations with other church leaders.
That makes the California rule a violation of the First Amendment, the NCC argued in a brief asking the Supreme Court to hear the case. Limiting the scope to a one-on-one conversation favors some religions over others.
Southern Baptist Ethics and Religious Liberty Commission president Russell Moore agrees that the rule favors Roman Catholic confessions, where a priest and a penitent meet privately. In many evangelical denominations, several clergy may hear an admission, or pastors may consult with one another on a congregant's confession.
"Often the law presumes a Roman Catholic understanding of confession in a way that I don't think adequately addresses the spiritual realities in American religious life," Moore said.
Though standing with Scientology if they are attempting to hide abuse is repugnant, standing up for the clergy-penitent privilege is crucial, said University of Pennsylvania Law School professor David Skeel.
"It strikes me as potentially really important, because it's a privilege that has a deep historical precedent and it's coming under enormous pressure, in part because of deeply disturbing behavior within a religious context, at a time when there is general anxiety about the status of religious freedom," he said.
Hard cases make bad law, Skeel says, and this one is particularly hard.
"It would be unfortunate if a hard case like this one made a law that seemed fair in this particular case, but undermined privilege and injected courts into conversations within churches," he said.
If the Supreme Court does decide California's one-on-one designation favors one religion, the next hurdle is defining who constitutes clergy. The court has already said it won't tell churches how to designate its leaders.
But courts do take into account different religious structures when they decide property lawsuits, Moore said. "The court has to determine, on the church's own terms, how the church is governed. I think the same thing comes into play here. The court needs to ask in this particular context, 'If the default picture is a priest with a penitent in a confessional booth, what is the equivalent in this ecclesiastical contest?'"
Though the Southern Baptists' ethics commission hasn't taken a side on the Scientology case, Moore said he isn't afraid to stand with strange allies against affronts to religious liberty.
"What's happening now is that with the secularization of American culture and a pluralizing American religious scene, there are so many new incursions upon religious liberty that very diverse coalitions are being formed," he said. "There is definitely going to be more of this. Religious liberty is going to be a pressing issue for the foreseeable future, and one thing we have to do as evangelicals is to stand for not only our own religious liberty, but religious liberty for everybody."
University of Saint Thomas law professor Thomas Berg agrees. "That is a genuine question: Should you weigh in on behalf of a group where you have serious problems with some of the group's actions? You have to be willing to do that in some cases."
But he thinks churches should also be willing—even eager—to acknowledge the troubling moral issues when taking a side in a case that involves allegations of abuse, forced abortion, and other heinous behavior.
"There are more costs to intervening in cases with heinous behavior. They're still only allegations, but yes, you have to acknowledge these things are alleged. It's important for moral and legal reasons, and for the public's perception of what you do, to make proper acknowledgement of what you agree with and what you're defending and not defending."
The NCC brief, which it filed with two Scientologists and the Queens (N.Y.) Federation of Churches, doesn't make any mention of the abuse allegations. Published reports said officials at the Episcopal Church, a member of the NCC, objected to the brief after learning about it. CT was unable to confirm those reports.
The Supreme Court, which accepts about 80 cases each year, will announce the list of petitions granted after its September 30 conference.